Slave Trade Reparations (Ster)

Slave Trade Reparations (SteR)

School of Oriental and African Studies

University of London

INSTITUTE OF ADVANCED LEGAL STUDIES

Fernne Brennan©

(17TH March 2009)

Question:

Should reparations be made for the Transatlantic Slave Trade?

“The first requirement is to recognise that the problem exists. The second requirement is to understand and draw the right conclusions and the third requirement is to do something about them” (from Crispin Tickell in the Foreword to James Lovelock, the Revenge of Gaia (2006)).

Chattel Slavery

Discussion: What is European Chattel Slavery?

Chattel slavery consists of the systematic de-humanisation of people for the purpose of the advancement of economic commerce. Blackburn

“Europeans who bought Africans treated them as subhuman: they raped, tortured, mutilated, and murdered slaves with impunity. In the Eyes of many Europeans, all Africans were things to be bought, sold, used and abused. That some Africans were sellers while others were slaves was a mere matter of contingency, not one that humanised some Africans while dehumanizing others. Michael, a professor from Congo said that “Slavery degraded people. The slave lost his human personality….Not only was he completely deracinated (tear up by the roots) but he was treated as an animal, a beast, sold as a slave, sold. And when you sell someone, my God, it’s not a human being, treated as a slave, flogged… He was even robbed of the fullness of thought. People said it’s absolutely forbidden to think.” Howard-Hassman

“The majority of the slaves accommodated themselves to this unceasing brutality by a profound fatalism and a wooden stupidity before their masters. One old Negro, having lost one of his ears and condemned to lose another, begged the Governor to spare it, for if that too was cut off he have nowhere to put his stump of cigarette.” James

“The Holocaust of enslavement expresses itself in three basic ways: the morally monstrous destruction of human life, human culture and human possibility.” Karenga

“No African trade, no Negroes, no Negroes, no sugar, no sugar no islands, no island no Continent, no Continent no trade.” Sherwood

“The Zong - Gregson v Gilbert (1783) 99 ER 629. [2] Act 3 & 4 William IV. C. 73. (1783), was an infamous case brought before the then Chief Justice Lord Mansfield a judge whose judicial work was “powerfully guided by the aim of promoting the mercantile economy of England.” The captain of the Zong en route to Jamaica bound over 130 slaves together and threw them overboard into the sea where they drowned. This mass murder was treated as loss of property to the owners of the ship who claimed insurance on the murdered slaves. The owners argued that the killings took place to enable the remaining slaves and crew to survive. The owners were awarded damages in which the losses were allowed; but in an appeal hearing before Mansfield and two others this judgment was overturned, since the captain’s mistake could not be called a “Peril of the Sea,” and there were a number of factors suggesting that water supplies were not seriously depleted. Murder was not the issue in law: Despite commenting on the shocking nature of the case, Mansfield insisted repeatedly that in law it was as if horses had been jettisoned.”Krikler

Reading:

R. Blackburn, The Making of New World Slavery (Verso, 1998).
R. Howard-Hassmann, Reparations to Africa (University of Pennsylvania Press, 2008).
M. Karenga, The Ethics of Reparations: Engaging the Holocaust of Enslavement. Extracted from a paper titled “ The Ethics of Reparations: Engaging the Holocaust of Enslavement”, at the National Coalition of Blacks for Reparations in America Convention, Baton Rouge, LA, 2001 June 22-23 at .
M. Sherwood and K. Sherwood, Britain, the Slave Trade and Slavery from 1562 to the 1880s (Savannah Press, 2007).
J. Krikler, The Zong and the Lord Chief Justice (2007).

Trade (the legacy)

Discussion: How Is European Chattel Slavery Relevant To Today?

A CRIME AGAINST HUMANITY AND SHOULD ALWAYS HAVE BEEN SO

THE LEGACY OF THIS SLAVE TRADE PERSISTS IN THE RACIAL DISCRIMINATION SUFFFERED BY AFRICANS AND THEIR DESCENDANTS AND ASIANS AND THEIR DESCENDANTS: “We acknowledge that slavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims, and further acknowledge that slavery and the slave trade are a crime against humanity and should always have been so, especially the transatlantic slave trade and are among the major sources and manifestations of racism, racial discrimination, xenophobia and related intolerance, and that Africans and people of African descent, Asians and people of Asian descent and indigenous peoples were victims of these acts and continue to be victims of their consequences;”World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001.

“We recognize that colonialism has led to racism, racial discrimination, xenophobia and related intolerance, and that Africans and people of African descent, and people of Asian descent and indigenous peoples were victims of colonialism and continue to be victims of its consequences. We acknowledge the suffering caused by colonialism and affirm that, wherever and whenever it occurred, it must be condemned and its reoccurrence prevented. We further regret that the effects and persistence of these structures and practices have been among the factors contributing to lasting social and economic inequalities in many parts of the world today.” World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001.

“We recognize that in many parts of the world, Africans and people of African

descent face barriers as a result of social biases and discrimination prevailing in public and

private institutions and express our commitment to work towards the eradication of all forms of

racism, racial discrimination, xenophobia and related intolerance faced by Africans and people

of African descent;”World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001.

“We recognize that people of African descent have for centuries been victims of

racism, racial discrimination and enslavement and of the denial by history of many of their

rights, and assert that they should be treated with fairness and respect for their dignity and should

not suffer discrimination of any kind. Recognition should therefore be given to their rights to

culture and their own identity; to participate freely and in equal conditions in political, social,

economic and cultural life; to development in the context of their own aspirations and customs;

to keep, maintain and foster their own forms of organization, their mode of life, culture,

traditions and religious expressions; to maintain and use their own languages; to the protection of

their traditional knowledge and their cultural and artistic heritage; to the use, enjoyment and

conservation of the natural renewable resources of their habitat and to active participation in the

design, implementation and development of educational systems and programmes, including

those of a specific and characteristic nature; and where applicable to their ancestrally

inhabited land;” World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001.

“We recognize that in many parts of the world, Africans and people of African

descent face barriers as a result of social biases and discrimination prevailing in public and

private institutions and express our commitment to work towards the eradication of all forms of

racism, racial discrimination, xenophobia and related intolerance faced by Africans and people

of African descent;” World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001.

It drove Western trade and built today’s industrial economies…..Williams

“This inhuman trade furnished the industrial revolution, comprised of slaves imported from Africa, exports and ships from the West and raw materials of the colonial plantations. This period was an appalling tragedy in the history of humanity. An economically determined slave trade – ideologically justified and rationalised by reference to ascribed racial differences, subjugated people of African descent as inferior beings and resulted in major sources of racism faced by people of African descent today. The imperialism and colonialism – which evolved from the Transatlantic Slave Trade – was also a source of racism suffered by people of African descent.

The systems of imperialism and colonialism, described as a ‘form of conduct and social organisation’ accepted and practiced by the major powers, are now proscribed as one of the ‘paradigms of injustice’. These periods constituted forms of institutional racism consisting of the separation and subjection of African and Caribbean economies and their inhabitants for the political benefit and economic well-being of the Motherlands of England, France, Italy, Germany and so on.

Fanon discusses the notion of ‘being for others of which Hegel speaks’ as the essence of these periods of experienced exploitation. Post-colonial Africa and the Caribbean did not evolve free of such institutionally racist practices and ideologies which developed during those periods. Notions of inferior peoples and the exploitation of the economies they were forced to inhabit in the Caribbean did not disappear; rather they are seen as essential to the maintenance of white power structures keen to protect political and economic interests and maintain indirect rule albeit through Western dominance in international trade relations. The trading rules in fundamental areas such as banana, sugar and rice industries injure former slave colonies and the mainly poor that inhabit them today.” Brennan (2006)

“The Caribbean’s use of preferential treatment for its sugar has been critical to its sugar industry but has not brought with it the sugar fortunes for internal investment. Caribbean economies continue to be locked into a system that lacks focus on development because of its historical ties[1] which saw fortunes made and lost in the West.”Brennan (2009)

Reading:

World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, from 31 August to 8 September 2001,
E. Williams, Capitalism and Slavery (North Carolina Press, 1994).
F. Brennan, ‘Time for a Change: Reforming WTO Trading Rules to take account of Reparations’, in J. Dine and A. Fagan, Human Rights and Capitalism: A Multidisciplinary Perspective on Globalisation (Edward Elgar publishing, 2006).
Fernne Brennan, ‘Race Rights Reparations: Exploring a Reparations Framework for Addressing Trade Inequality’, Hamline Journal of Public Law and Policy, 2008 forthcoming, ().

Reparations

Discussion: What Is Reparations?

Arguments for and arguments against reparations

1. The obligation to respect, ensure respect for and implement international

human rights law and international humanitarian law as provided for under the

respective bodies of law emanates from:

(a) Treaties to which a State is a party;

(b) Customary international law;

2. If they have not already done so, States shall, as required under international

law, ensure that their domestic law is consistent with their international legal

obligations by:

(a) Incorporating norms of international human rights law and international

humanitarian law into their domestic law, or otherwise implementing them in their

domestic legal system;

(b) Adopting appropriate and effective legislative and administrative

procedures and other appropriate measures that provide fair, effective and prompt

access to justice;

including reparation, as defined below;

(d) Ensuring that their domestic law provides at least the same level of

protection for victims as that required by their international obligations. General Assembly Resolution 60/147, 21 March 2006

Provide those who claim to be victims of a human rights or humanitarian

law violation with equal and effective access to justice, as described below,

irrespective of who may ultimately be the bearer of responsibility for the violation;

and provide effective remedies to victims, including reparation, as described

below. General Assembly Resolution 60/147, 21 March 2006

Adequate, effective and prompt reparation is intended to promote justice by

redressing gross violations of international human rights law or serious violations of

international humanitarian law. Reparation should be proportional to the gravity of

the violations and the harm suffered. In accordance with its domestic laws and

international legal obligations, a State shall provide reparation to victims for acts or

omissions which can be attributed to the State and constitute gross violations of

international human rights law or serious violations of international humanitarian

law. In cases where a person, a legal person, or other entity is found liable for

reparation to a victim, such party should provide reparation to the victim or

compensate the State if the State has already provided reparation to the victim.

16. States should endeavour to establish national programmes for reparation and

other assistance to victims in the event that the parties liable for the harm suffered

are unable or unwilling to meet their obligations.

17. States shall, with respect to claims by victims, enforce domestic judgements

for reparation against individuals or entities liable for the harm suffered and

endeavour to enforce valid foreign legal judgements for reparation in accordance

with domestic law and international legal obligations. To that end, States should

provide under their domestic laws effective mechanisms for the enforcement of

reparation judgements.General Assembly Resolution 60/147, 21 March 2006

“The struggle for reparations for the Holocaust of Enslavement of African people is clearly one of the most important struggles being waged in the world today. For it is about fundamental issues of human freedom, human justice and the value we place on human life in the past as well as in the present and future… ethical dimension is the first and most fundamental dimension of the reparations issue and unless that is engaged and successfully pursued, the issue of reparations will appear to lack moral grounding in the court of national and world opinion, and thus, will be cast as a claim unworthy of support on any other level.

In consideration of the issue of reparations as essentially and foremost an ethical issue, it must above all be framed in ethical terms. Therefore, the struggle for reparations begins with the definition of the horrendous injury to African people which demands repair. In other words, to talk of reparations is first to identify and define the injury, to say what it is and is not, to define its nature and its impact on the one(s) injured. Unless this is done first and maintained throughout the process, there is no case for reparations only an incoherent set of claims without basis in ethics or law.

This is why the established order works so hard to define away the historical and ongoing character of the injury. This is especially done in two basic ways. First, the injury is distorted and hidden under the category of "slave trade". The category trade tends to sanitize the high level of violence and mass murder that was inflicted on African peoples and societies. If the categorization of the Holocaust of Enslavement can be reduced to the category of "trade" two things happen. First, it becomes more of a commercial issue and problem than a moral one. And secondly, since trade is the primary focus, the mass murder or genocide can be and often is conveniently understood and accepted as simply collateral damage of a commercial venture gone bad.

A second attempt of the established order to deny the horrendous nature of the injury and its essential responsibility for it is to claim collaboration of the victims in their own victimization. Here it is morally and factually important to make a distinction between collaborators among the people and the people themselves. Every people faced with conquest, oppression and destruction has had collaborators among them, but it is factually inaccurate and morally wrong and repulsive to indict a whole people for a holocaust which was imposed on them and was aided by collaborators. Every holocaust had collaborators: the Native Americans, Jews, Australoids, Armenians and Africans. No one morally sensitive claims Jews are responsible for their holocaust based on the evidence of Jewish collaborators. How then are Africans indicted for the collaborators among them?

Although there are other ways, the established order seeks to undermine the factual and moral basis of the African claim for reparations, these two are indispensable to its efforts. And thus, they must be raised up and rejected constantly, for they speak to the indispensable need to define the injury to African people and to maintain control of it.”Karenga

“And finally, the morally monstrous destruction of human possibility involved redefining African humanity to the world, poisoning past, present and future relations with others who only know us through this stereotyping and thus damaging the truly human relations among peoples. It also involves lifting Africans out of their own history making them a footnote and forgotten casualty in European history and thus limiting and denying their ability to speak their own special cultural truth to the world and make their own unique contribution to the forward flow of human history.

It is here that the issue of stolen labor and ill-gotten gains which is seen as important to the legal case can be raised. For in removing us from our own history, enslaving us and brutally exploiting our labor, it limited and prevented us from building our own future and living the lives of dignity and decency which is our human right.”Karenga

“Regardless of the eventual shape of the evolved discourse and policy on reparations, there are five essential aspects which must be addressed and included in any meaningful and moral approach to reparations. They are public admission, public apology, public recognition, compensation, and institutional preventive measures against the recurrence of holocaust and other similar forms of massive destruction of human life, human culture and human possibility.” Karenga